England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		30 October 2012

1. MR JUSTICE FOSKETT: The appellant is now aged 28 and appeals against two extradition orders made on 25 April this year by District Judge Snow this year at Westminster Magistrates' Court. The original grounds sought to be advanced, as formulated in her initial skeleton argument prepared by Miss Bhatt for the appellant, have been narrowed and confined to three issues which I can identify as follows: two matters affecting the first of the two warrants and general Article 8 considerations. No point is continued to be maintained in relation to the second warrant. Miss Hinton for the judicial authority contends that the points that are sought to be raised in relation to the first warrant are not points that are really open to be taken on this appeal. I will return to that shortly when I have introduced the background in a little more detail.
2. The appellant is sought by two courts in Poland on two European Arrest Warrants. The first was issued on 12 March 2008 and certified by the Serious Organised Crime Agency on 18 September 2009, and the second on 15 December 2010 and certified by the Agency on 18 April 2012. Both relate to criminal proceedings in Poland which resulted in the appellant's conviction and sentence for various matters. The first warrant refers to three findings of theft, fraud by false representation and theft from a shop, in respect of which the appellant was to serve a total of 2 years and 10 months' imprisonment. The first and second offences were committed in 2002 and the third offence was committed in June 2005. The second warrant relates to one finding, namely of theft, committed in April 2005 in respect of which the appellant was sentenced to 8 months' imprisonment.
3. He came to the United Kingdom in breach of the court orders requiring him to serve the custodial sentences and the judicial authority seeks his surrender to serve the outstanding term. It seems that he came to the UK in or before April 2006 because he has a caution recorded against him for theft in April 2006. He was arrested in the UK on 24 April of this year and when he was arrested gave the police a false name.
4. The matters that Miss Bhatt continues to rely upon are these. In relation to the first offence under the first arrest warrant, what is said is that the appellant has already served the sentence imposed upon him for that matter. No concession to that effect is the made by the judicial authority and all that there is before me is, in effect, the assertion of the appellant that that was so. Leaving aside just for present purposes the question of whether that is an issue which can properly be raised at this appeal, it not having been raised before the District Judge, the very short answer to it, in my judgment, is that if it is the case that he has served that part of the overall prison sentence imposed in relation to those matters then it will be a matter that will be resolved by the Polish authorities on his return to Poland if I confirm the order for extradition. To my mind, it goes not at all to the question of the validity of the warrant and, as I have indicated, it is a matter that can be resolved in that fashion should he be extradited.
5. Moving then to the second point that is raised and that relates to the third offence reflected in the first European Arrest Warrant. It is sought to be asserted that he was not present at the proceedings at which he was convicted. There is a suggestion that he was not present, or he makes the suggestion that he was not present, either at the conviction hearing or at the hearing at which the sentence was activated, but it is clear from the case of Baksys v Lithuania [2007] EWHC 2838 (Admin) that the second matter, if true, would not avail him of any argument going to the validity of the warrant. But in all events, what he seeks to say now is that he was not present at the proceedings at which he was convicted.
6. Again, just for the moment leaving aside the question of whether he is entitled to take that point, Miss Hinton draws attention to the fact that the warrant indicates that he was lawfully convicted and that box D contains the letters "N/A", in other words not applicable, and that, she argues, should be taken at face value. On the merits, if the merits were to be considered, that seems to be a strong point.
7. However, the main point that has been raised in response to the way in which the appellant seeks to have the matter put before this court is that no point to this effect was raised before the District Judge. No suggestion was made before the District Judge that he was not present at any of the hearings at first instance and no reference was also made to this particular point in the grounds of appeal first advanced. Not, I should say grounds drawn by Miss Bhatt, but certainly drawn by someone within the firm of solicitors who the appellant instructed.
8. As I have indicated, he now seeks to say that he was not present at the District Court when he was convicted of the third offence in the first warrant. When he appeared before the District Judge it is common ground that he was represented by an experienced extradition solicitor and it is the case that no complaint has been made about the quality of the representation of the advice he received. It is plain that there was no application to adjourn the proceedings to prepare his case and no bars were raised to his extradition or challenges made to the request. Miss Hinton says that the matters he now seeks to rely upon would have clearly been within his knowledge at the time of the extradition hearing and he did have the benefit of expert legal advice and assistance.
9. The explanation that has been offered for not relying upon these matters at that stage appears to be what can be said loosely to have been an interpretation difficulty. In other words, it is suggested that the interpreter who was present either failed to understand what he was saying or gave him reason to believe that he should not say anything about matters of this nature. Without quoting it in detail, the appellant's witness statement seems to assert a number of factors which are suggestive of this.
10. The difficulty with raising a matter of this nature at this stage is that no steps have been taken to see whether that does represent the recollection of the interpreter who was present at the time. All that I have before me is an assertion by the appellant that there were some problems in that respect. I accept, as Miss Bhatt has said, there may be have been difficulties in identifying the person involved and there may have been difficulties associated with the lack of memory on that person's part about the circumstances in which he or she came to assist the appellant on that day. But the bottom line is that no effort has been made to identify that person and, in those circumstances, it is very difficult to treat as credible what the appellant says about it. Again, it is not a matter that was specifically raised in the first grounds of appeal prepared in the manner that I have already indicated.
11. It is correct to say that this is not specifically embraced within the approach of the case of Sondy v Crown Prosecution Service [2010] EWHC 108 (Admin), which relates to what should be done where the complaint is that the legal advice or representation was inadequate or negligently proffered. But there is some loose analogy between that situation and where the quality of the interpretation is raised. This ground would have been more credible if some effort had been made to invite the comments of the interpreter.
12. The point that is made, and made in my judgment with force, is that the circumstances that would in the ordinary course of events permit the reception of new evidence before this court have not been met. The principles are well established and no proper explanation has been given for why these matters were not raised below. That, in my judgment, would be quite sufficient for these points not to have any validity for the purposes of this appeal.
13. To my mind, none of these points are properly arguable before me and I reject them. This leaves open only the question of whether the Article 8 considerations, to which reference has been made, ought to operate to outweigh the public interest in maintaining extradition treaties as between countries that sign up to them.
14. The position as far as the Article 8 considerations in this case are concerned can be put very shortly. I have indicated the age of the appellant, he apparently has a son aged about six or thereabouts, who is resident, as I understand it, with the mother in Scotland. Doubtless there is some contact between them but it cannot be on an extensive basis and it would be difficult to say that the son is in any way dependent upon the appellant and the appellant's presence in the United Kingdom. As Miss Hinton says, the circumstances come nowhere near to any of the tests set out in the well-known cases and it seems to me that that point is equally unarguable. So for those reasons very briefly expressed, this appeal is dismissed.
15. Thank you both very much for your help. Is there anything else I need to deal with?
16. MISS HINTON: No, my Lord, thank you.
17. MISS BHATT: My Lord, I would be grateful for a assessment costs order.
18. MR JUSTICE FOSKETT: Are you publicly funded? Yes, of course you may. Thank you very much indeed.